Com. v. Rose, R., Com. v. Rose, R. No. 1447 WDA 2016

Background

Raymond Rose pleaded guilty in 2004 to multiple sexual-offense counts and was sentenced to an aggregate 13–32 years' imprisonment; no direct appeal was initially filed.
Rose filed a timely PCRA petition in 2006; counsel was appointed, a supplemental petition filed, and the PCRA court reinstated his direct-appeal rights; the Superior Court later affirmed.
Rose pursued additional nunc pro tunc post-sentence motions and appeals; the Superior Court again affirmed in 2008.
On March 29, 2016, Rose filed another PCRA petition arguing his sentence is illegal under Alleyne and Montgomery and that those cases should be applied retroactively; PCRA counsel filed a Turner/Finley no-merit letter.
The PCRA court issued a notice to dismiss as untimely and dismissed the petition; Rose, while still represented by counsel whose request to withdraw had been denied, filed a pro se notice of appeal and a pro se brief.
The Superior Court held that because Rose was still represented and only a pro se brief was filed (no counseled brief and no leave to proceed pro se), the pro se filings were legal nullities and the appeal was quashed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rose's pro se appeal/brief may be considered while he remains represented by counsel	Rose argued his appeal is timely and his sentence is illegal under Alleyne and Montgomery; sought to proceed pro se	Commonwealth argued (implicitly) that pro se filings by a represented party are invalid; PCRA court emphasized counsel remained of record	Court held pro se filings by a represented appellant are legal nullities; because counsel had not been allowed to withdraw and no counseled brief was filed, the appeal was quashed
Whether the PCRA petition satisfied a timeliness exception based on Alleyne/Montgomery retroactivity	Rose argued Alleyne/Montgomery give retroactive effect making his petition timely	Commonwealth did not file brief; court did not reach merits because procedural defect (hybrid representation) barred review	Court did not reach merits; dismissed appeal on procedural ground of improper pro se submission while represented
Whether counsel had properly withdrawn such that Rose could litigate pro se	Rose submitted pro se documents suggesting counsel abandoned him	The PCRA court had denied counsel Hathaway's petition to withdraw; counsel never obtained leave to withdraw	Court found counsel remained counsel of record; pro se filings therefore invalid
Whether remedy exists if Rose believes he was abandoned	Rose could claim abandonment and seek relief	Commonwealth and court noted procedural remedies exist	Court noted Rose may file a new PCRA petition within 60 days of this appeal’s conclusion to seek reinstatement nunc pro tunc (per Bennett)

Key Cases Cited

Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (pro se filings by a represented appellant are legal nullities)
Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011) (pro se notice of appeal by represented appellant not automatically void; courts may consider context)
Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993) (appellant must either be represented or obtain permission to proceed pro se)
Commonwealth v. Glacken, 32 A.3d 750 (Pa. Super. 2011) (appeal quashed where only a pro se brief was filed while counsel remained of record)
Commonwealth v. Nischan, 928 A.3d 349 (Pa. Super. 2007) (court will not review pro se filings of a counseled appellant)
Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015) (once counsel appears, counsel must continue representation until granted leave to withdraw)
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (procedure to seek reinstatement of appellate rights nunc pro tunc for alleged counsel abandonment)
Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (heightened Apprendi rule regarding facts increasing mandatory minimums)
Montgomery v. Louisiana, 136 S. Ct. 718 (U.S. 2016) (procedural rule given retroactive effect under Teague framework)